[Senate Hearing 107-944]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-944

   S.J. RES. 35, PROPOSING A VICTIMS' RIGHTS AMENDMENT TO THE UNITED 
                          STATES CONSTITUTION

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 17, 2002

                               __________

                          Serial No. J-107-94

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah,
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

                    Subcommittee on the Constitution

                RUSSELL D. FEINGOLD, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont            STROM THURMOND, South Carolina
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          MITCH McCONNELL, Kentucky
                 Robert Schiff, Majority Chief Counsel
                 Garry Malphrus, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
    prepared statement...........................................    71
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     5
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    98
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................   155

                               WITNESSES

Bird, Arwen, Director, Survivors Advocating for an Effective 
  System, Portland, Oregon.......................................    16
Gillis, John W., Director, Office for Victims of Crime, 
  Department of Justice, Washington, D.C.........................    10
Goldscheid, Julie, General Counsel, Safe Horizon, New York, New 
  York...........................................................    21
Orenstein, James, Baker and Hostetler, LLP, New York, New York...    28
Pilon, Roger, Director, Center for Constitutional Studies, Cato 
  Institute, Washington, D.C.....................................    23
Roper, Roberta, Executive Director, Stephanie Roper Committee and 
  Foundation, Inc., Upper Marlboro, Maryland.....................    17
Twist, Steven J., General Counsel, National Victims 
  Constitutional Amendment Network, Scottsdale, Arizona..........    26

                         QUESTIONS AND ANSWERS

Response of Arwen Bird to a question submitted by Senator Leahy..    39
Responses of John Gillis to questions submitted by Senator Leahy.    41
Response of Julie Goldscheid to a question submitted by Senator 
  Leahy..........................................................    53
Response of Roberta Roper to a question submitted by Senator 
  Leahy..........................................................    56

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Washington, D.C., news release 
  and attachment.................................................    57
Bird, Arwen, Director, Survivors Advocating for an Effective 
  System, Portland, Oregon, statement............................    65
Bolton Refuge House, Inc., Gerald L. Wilkie, Executive Director, 
  Eau Claire, Wisconsin, letter..................................    66
California District Attorneys Association, Lawrence G. Brown, 
  Executive Director, Sacramento, California, letter.............    67
Colorado Organization for Victim Assistance, Nancy Lewis, 
  Executive Director, Denver, Colorado, letter...................    69
Federal Law Enforcement Officers Association, Richard J. Gallo, 
  President, Lewisberry, Pennsylvania, letter....................    70
Ferres, Donna J., Fort Myers, Florida, letter....................    73
Fraternal Order of Police, Grand Lodge, Steve Young, National 
  President, Washington, D.C., letter............................    75
Gillis, John W., Director, Office for Victims of Crime, 
  Department of Justice, Washington, D.C.........................    76
Goldscheid, Julie, General Counsel, Safe Horizon, New York, New 
  York...........................................................    84
International Union of Police Associations, AFL-CIO, Dennis J. 
  Slocumb, International Executive Vice President, Alexandria, 
  Virginia, letter...............................................    92
Kight, Marsha A., Arlington, Virginia, letter....................    93
Marquis, Joshua, District Attorney, Clatsop County, Astoria, 
  Oregon:
    July 15, 2002, letter........................................   100
    July 16, 2002, letter........................................   102
McCann, E. Michael, District Attorney, Milwaukee County, 
  Milwaukee, Wisconsin, letter...................................   103
Mothers Against Drunk Driving, Wendy J. Hamilton, National 
  President, Irving, Texas.......................................   104
National Association of Police Organizations, Inc., William J. 
  Johnson, Executive Director, Washington, D.C., letter..........   105
National Clearinghouse for the Defense of Battered Women, 
  Philadelphia, Pennsylvania, statement..........................   106
NOW Legal Defense and Education Fund, Washington, D.C., statement   112
Orenstein, James, Baker and Hostetler, LLP, New York, New York, 
  prepared statement.............................................   114
Parents of Murdered Children of New York State, Inc., Odile 
  Stern, Executive Director, Fire Island, New York, statement....   130
Perkins, Joseph, San Diego Union-Tribune, San Diego, California:
    April 19, 2002, editorial....................................   132
    June 12, 2002, editorial.....................................   131
Pilon, Roger, Director, Center for Constitutional Studies, Cato 
  Institute, Washington, D.C., prepared statement................   133
Preston, Bob, Littleton, Colorado, letter........................   139
Roper, Roberta, Executive Director, Stephanie Roper Committee and 
  Foundation, Inc., Upper Marlboro, Maryland, prepared statement.   141
Russell, Susan S., Warren, Vermont, letter.......................   146
Safe Horizon, Gordon J. Campbell, Chief Executive Officer, New 
  York, New York, letter.........................................   151
Southern States Police Benevolent Association, Inc., H.G. "Bill" 
  Thompson, Director, Governmental Affairs, McDonough, Georgia, 
  letter.........................................................   154
Tribe, Lawrence, Ralph S. Tyler, Jr. Professor of Constitutional 
  Law, Harvard University Law School, Cambridge, Massachusetts:
    March 14, 2002, letter.......................................   162
    Boston Globe, March 29, 2002, editorial......................   160
Twist, Steven J., General Counsel, National Victims 
  Constitutional Amendment Network, Scottsdale, Arizona, prepared 
  statement......................................................   164
Vermont Center for Crime Victim Services, Judy Rex, Executive 
  Director, Waterbury, Vermont, letter...........................   204
Western Governors' Association, Hon. Jane Dee Hull, Governor of 
  Arizona, Chairman, Denver, Colorado, letter....................   205

 
   S.J. RES. 35, PROPOSING A VICTIMS' RIGHTS AMENDMENT TO THE UNITED 
                          STATES CONSTITUTION

                              ----------                              


                        WEDNESDAY, JULY 17, 2002

                              United States Senate,
                          Subcommittee on the Constitution,
                                Committee of the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10:02 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, Chairman of the Subcommittee, presiding.
    Present: Senators Feingold, Feinstein, and Kyl.

OPENING STATEMENT HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM 
                     THE STATE OF WISCONSIN

    Chairman Feingold. This hearing will come to order. Good 
morning, and welcome to this hearing of the Senate Judiciary 
Committee's Subcommittee on the Constitution. I want to thank 
everyone for being here today.
    This hearing concerns Senate Joint Resolution 35, a 
proposed victims' rights amendment to the United States 
Constitution. I agreed to hold this hearing at Senator 
Feinstein's request, and I did so even though I oppose her 
proposed amendment. But I did it because I agree with her goal 
to protect and enhance the rights of victims of crime.
    I share the desire to ensure that those in our society who 
most directly feel the harm callously inflicted by criminals do 
not suffer yet again at the hands of a criminal justice system 
that ignores victims. A victim of a crime has a personal 
interest in the prosecution of the alleged offender.
    Victims want their voices to be heard. They want, and 
deserve, to participate in the system that is designed to 
redress the wrongs that they and society have suffered at the 
hands of criminals. But I think Congress should proceed very 
carefully when it comes to amending the Constitution.
    After thinking long and hard about this issue, I am just 
not convinced that an amendment to the Constitution is 
necessary to protecting the rights of victims--a goal we all 
share. I believe that Congress can better protect the rights of 
victims by ensuring that current State and Federal laws are 
enforced, by providing resources to prosecutors and the courts 
to allow them to enforce and comply with existing laws, and 
also by working with victims to enact additional Federal 
legislation.
    In the 207-year history of the United States Constitution, 
only 27 amendments have been ratified, just 17 since the Bill 
of Rights was ratified in 1791. Two of the 17 concerned 
prohibition and so they, in effect, canceled each other out. 
Yet, literally hundreds of constitutional amendments have been 
introduced in the past few Congresses.
    To change the Constitution now is to say that we have come 
up with an idea that the Framers of that great charter did not. 
Yes, there are occasions when we need to bring the Constitution 
up to date, as with granting women the right to vote and 
protecting the civil rights of African Americans after the 
Civil War.
    But it is difficult to believe that the basic calculus of 
prosecutor, defendant, and victim has changed much since the 
founding of the Republic. There was some debate on this when we 
considered the amendment on the floor in the last Congress, but 
I think it is fairly well established that public prosecutions 
were the norm when the Constitution was written and adopted.
    I also believe that it is impossible to foresee the needs 
of all victims. Statutes are a better, more flexible, and 
faster response than amending the Constitution. For example, 
Congress enacted a statute after the Oklahoma City bombing and 
created a victims' compensation program after September 11, and 
now we are in the process of amending that statute to cover 
victims of other terrorist attacks.
    But unlike statutes, constitutional amendments cannot be 
easily modified. If this amendment were to be ratified and if 
some new development in the law were to require a change to the 
amendment, we would once again need to get approval of two-
thirds of the members of each House of Congress and then 
ratification by three-fourths of the State legislatures. This 
is a real problem because there are numerous uncertainties 
about the effect of this amendment. Even the sponsors have 
rewritten the entire amendment since the last time it was 
considered by the Senate not too long ago.
    I might add, however, that of all the constitutional 
amendments that I have considered since I became a Senator, 
this one is perhaps the least troubling because the goal is so 
laudable. In fact, as I have noted before, as a Senator in the 
Wisconsin State Senate I voted in favor of amending the 
Wisconsin State Constitution to include protections for 
victims. Thirty-three States now have a State constitutional 
protection for victims, and every State in the country has 
statutes to protect victims.
    But the Wisconsin State Constitution, like a number of 
other State constitutions, appropriately clarifies that the 
rights granted to victims cannot be reduce the rights of the 
accused in a criminal proceeding. Unfortunately, the proposed 
victims' rights amendment before us today does not contain a 
similar provision. That has been the source of significant 
debate in past years.
    Proponents of the amendment have argued that the rights of 
the accused are not undermined by giving victims constitutional 
rights. Yet, they have steadfastly refused to add a clause such 
as that contained in the Wisconsin State victims' rights 
amendment to make it absolutely clear that this is the case. 
They have never provided a convincing justification for that 
refusal, in my opinion.
    Finally, I would just note that I am also concerned that a 
victims' rights amendment could jeopardize the ability of 
prosecutors to investigate their cases, to prosecute suspected 
criminals, and to balance the competing demands of fairness and 
truth-finding in the criminal justice system.
    So, today, I look forward to hearing from our witnesses on 
the issue of whether it is necessary for Congress to take the 
rare and extraordinary step of amending the Constitution to 
protect the rights of victims.
    Now, let me turn to the distinguished ranking member and 
one of the main authors of this proposal for his opening 
remarks, Senator Kyl.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Senator Feingold, and I welcome all 
of the witnesses. I think that since we have had a number of 
hearings, our views are quite well known and it is probably 
more appropriate that we hear from the various witnesses that 
we have today.
    But since the text of the amendment is slightly different 
than what we dealt with earlier I would like to comment just a 
little bit about that and respond to a couple of the points 
that the Chairman made, and then turn this over to my 
colleague, Senator Feinstein, who has been working with me 
shoulder to shoulder for I don't know how many years now in 
this effort. I think we have come a long way, but it is clear 
we still have a way to go.
    Let me just state that a couple of our witnesses today will 
make the case, I think, for the amendment as being needed to 
protect victims' rights. The question that Senator Feingold 
raises is, of course, the question for this Committee, namely 
is it necessary to elevate those rights to Federal 
constitutional protection. It is a legitimate question, it is a 
serious question, and it is the one that has, I suspect, been 
the primary focus of our colleagues over the last several 
years.
    There is, in my view, ample evidence to support the 
proposition that the statutes and constitutional amendments 
that exist today in the States have not done the job. There are 
many statements from the previous administration--Department of 
Justice officials, including the Attorney General, Janet Reno--
that back that up.
    Let me just cite two statistics from a study that was done 
by the Department of Justice. It analyzed the States, like my 
own State of Arizona, that have some of the strongest 
protection for victims' rights of any State. And, remember, the 
States are where 99 percent of the action is, because most 
serious crimes of aggravated assault, sexual assault, murder, 
and so on, are violations of State law and those cases are 
tried in State courts. There aren't very many cases tried in 
Federal courts of that kind, so essentially we are talking 
about State prosecutions.
    According to this report of the National Institute of 
Justice, even in States that gave strong protection to victims' 
rights, fewer than 60 percent of the victims were notified of 
the sentencing hearing and fewer than 40 percent were notified 
of the pre-trial release of the defendant.
    The report concluded, and I am quoting now, ``Enactment of 
State laws and State constitutional amendments alone appears to 
be insufficient to guarantee the full provision of victims' 
rights in practice.'' That is the problem. We all have our 
hearts in the right place here, but as a practical matter it 
just doesn't happen. It isn't happening at the State level. And 
until rights are elevated to the level of full U.S. 
constitutional protection, I don't think they will be given the 
degree of importance and enforced to the extent that we intend 
for them to be.
    Now, there were some questions raised about the text that 
we had introduced before. Notwithstanding the fact that it 
passed the full Judiciary Committee by a bipartisan vote of 12 
to 5, there were some questions, and so we worked over the 
course of last winter with the experts in the field to rewrite 
the text to provide the same rights, but to do it in a form 
that was more consistent with what we are all familiar with as 
amendments to the Constitution. And I think we have done it in 
this text. President Bush recently announced his support for 
this exact text, and in doing so he said the amendment was 
written with care and strikes a proper balance.
    One of the experts that has helped us with this from the 
beginning is Laurence Tribe, a law professor from Harvard. I 
have come to have great respect for his brilliance in these 
matters, and frankly a lot of the textual change was the result 
of his suggestions.
    It is therefore perhaps not surprising that he has written 
a letter commenting upon the text that we finally introduced, 
praising the greater brevity and clarity of the amendment and 
saying, ``That you achieved such conciseness, while fully 
protecting defendants' rights''--let me underline that--``while 
fully protecting defendants' rights and accommodating the 
legitimate concerns that have been voiced about prosecutorial 
power and presidential authority is no mean feat. I think you 
have done a splendid job at distilling the prior versions of 
the victims' rights amendment into a form that would be worthy 
of a constitutional amendment.''
    Now, that is the concern that I had when victims first came 
to me. I said, how can we write this in a way that is worthy of 
being part of the U.S. Constitution? I think we have done that 
now and I feel much better about the language as a result of 
the changes that we made over the winter.
    There is a predicate assumption here in the current text 
that goes to this question of protecting the defendant's 
rights. And while you should not in an amendment reiterate 
something that is already provided for in terms of other 
rights, the predicate assumption is, and I quote--this is the 
very first line of the very first section of the article--``The 
rights of victims of violent crime, being capable of protection 
without denying the constitutional rights of those accused of 
victimizing them, are hereby established,'' et cetera.
    We have placed that recognition of defendants' rights in 
such a prominent place in response to legitimate questions that 
have been raised by people such as the Chairman today. I hope, 
therefore, that that predicate assumption will reduce people's 
concerns about somehow adversely impacting defendants' rights.
    There will be much more to be said. I think the witnesses 
here can respond to questions better than I. As I said, my 
views are well known on this. This amendment has had a large 
degree of support--both party platforms in the last national 
election called for the adoption of a Federal victims' rights 
constitutional amendment.
    You have a group of organizations, from Mothers Against 
Drunk Driving, Parents of Murdered Children, the National 
Organization of Victim Assistance, the Stephanie Roper 
Foundation--we are going to hear from Roberta Roper here, I 
think, a little bit later on--Arizona Voice for Crime Victims, 
one of my favorite groups, Crime Victims United, and other 
victims groups that are strongly in support, as are law 
enforcement groups, like the National Association of Police 
Organizations, the International Union of Police Associations, 
the Federal Law Enforcement Officers Association, and others. 
Thirty-nine State attorneys general have signed a letter, and 
on and on.
    So I think it is time for us to translate this strong 
support into political support here in the United States 
Senate. I would note that the amendment is moving forward in 
the U.S. House of Representatives. That is important, since we 
know that both bodies will have to approve it.
    I am very hopeful that whatever questions and concerns are 
raised--and I concede that the Chairman raises very serious 
questions here, legitimate questions--that we are able to move 
this amendment to the floor of the U.S. Senate so that we will 
at least have an opportunity to vote on it. We weren't able to 
vote on it before. Senator Feinstein and I had to pull it back 
from the floor. I hope that this time we will at least have an 
opportunity to have a vote and advance the cause of victims' 
rights another step or two, if not to reach all the way to a 
final victory in this year.
    Mr. Chairman, I would really like to hear from the 
witnesses, but, before that, from my colleague-in-arms who has 
been such a strong supporter and has given a great deal of not 
just energy, but moral support to this effort, Senator 
Feinstein.
    Chairman Feingold. Senator Kyl, I will turn to Senator 
Feinstein in a moment. Let me first say that we will have a 
vote at about 10:30, as I understand it, and I will recess the 
hearing just long enough so I can run over and vote and come 
straight back.
    I am pleased to turn to Senator Feinstein now. I must say 
that this is an impressive bipartisan effort by two of the most 
serious and very dedicated members of the Committee and the 
Senate. I like bipartisan combinations, especially with 
Senators from Arizona. I am a big fan of it. I just regret that 
I cannot, at least at this point, support what you are doing, 
but I do admire the way you have worked together.
    With that, I will turn to Senator Feinstein.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Well, thanks very much, Mr. Chairman, 
and thank you so much for having this hearing. Senator Kyl 
mentioned some of the organizations that are here. I wonder if 
the victims that have come, some of you from very far away, 
would just stand so that I might know who you are.
    [Several persons stood.]
    Senator Feinstein. I just want to say thank you, Roberta. I 
want to say thank you very much for being here. It means a lot 
to us. Thank you so much.
    I believe very passionately in this. I first got involved 
in this amendment in 1982. It was called the Victims' Bill of 
Rights and California was the first State to pass it. I 
supported it, and at the time it was very controversial and it 
passed overwhelmingly. Since then, some 32 States have passed 
victims' rights constitutional amendments. I often say to 
people, when you watch big trials you will see a victim in the 
courtroom and the reason generally is because the State has 
passed such an amendment.
    It is a pretty simple amendment, and the rationale for the 
amendment was when our country was founded, when we were 13 
colonies and essentially less than 4 million people, victims 
did have rights. Victims hired a sheriff, victims often 
prosecuted the case.
    Then, in the mid-19th century, in the 1850s, when the 
concept of the public prosecutor was evolved, the victim was 
less out, so that a victim as not noticed of a trial, a victim 
had no right to be present during the trial. As a matter of 
fact, the defense attorneys fast learned that what they wanted 
to do was very often subpoena victim and say they were going to 
use them specifically to keep them out of the courtroom so that 
there could be no sympathy that that victim would elucidate.
    The victim today is not even noticed if their attacker is 
released from jail or prison. What we have had is that many 
victims are victimized a second time by the attacker because of 
this.
    I was called by a young woman in San Francisco when I was a 
supervisor and when I was a mayor. It was a terrible case. 
Someone had gone into her home, had killed her husband, raped 
her, broke her arm, broke her jaw, tied her up, and set the 
house on fire. She survived, and the only reason the 
perpetrator was convicted was because she was there to testify 
against him.
    Well, to this very day, she has changed her name and she 
lives in anonymity. She would call me every year when he would 
come up for parole and say, please help me; I have to keep him 
in, I live in dread, I know he is going to come after me. Her 
pseudonym was Annette Carlson, and I don't know if he has ever 
been paroled or not, but I do know this: No victim should ever, 
ever have to live like this.
    So that is sort of the passion that has fueled me in this 
debate, and it is has been very interesting to me because on 
the floor I have heard, well, what we drafted last time was too 
long; well, it doesn't mention the defendant.
    The whole point is that the judge has to balance these 
rights, and the judge can balance them. As Senator Kyl pointed 
out, in the predicate to the constitutional amendment we point 
out that the intent is not to adversely impact a defendant's 
rights.
    The rights are pretty simple: the right to receive notice. 
What is wrong with that? Nothing. The right to be present in 
the courtroom. A victim should have that right. The right to 
make a statement; the right to restitution, if ordered by a 
judge; the right to be considered for the timeliness of the 
trial. We all know that one of the things that happens is you 
stall the trial. Witnesses disappear, evidence gets cold, a 
case is harder to make.
    The right to know when your attacker is released. Why? So 
you can protect yourself. The right to restitution, if ordered 
by a judge. Pretty simple rights. I believe that virtually 
every American, if this were put to a vote, would be in support 
of these basic rights.
    We also heard the last time we did this that, well, we 
should pass a statute; a statute is going to handle. But, 
ladies and gentlemen and members of the Committee, we have 
already found that a statute won't handle this, and I would 
like to give you the Oklahoma City bombing case as an example.
    In that case, two Federal victims' rights statutes were not 
enough to give victims of this bombing a clear right to be 
present and to testify, even though one of the statutes was 
passed with the specific purpose of allowing the victims to do 
just that.
    Let me quote from one of these statutes, the Victims of 
Crimes Bill of Rights, passed in 1990 by the House, by the 
Senate, and signed by the President, and it says, ``A crime 
victim has the following rights: the right to be present at all 
public court proceedings related to the offense, unless the 
court determines that testimony by the victim would be 
materially affected if the victim heard other testimony at 
trial.''
    That statute further states, ``Federal Government officers 
and employees engaged in the detection, investigation, or 
prosecution of crime shall make their best efforts to see that 
victims of crime are accorded the rights.'' The law also 
provides that this section does not create a cause of action or 
defense in favor of any person arising out of the failure to 
accord a victim these rights.
    Now, you would think that would be enough, but it wasn't, 
because in spite of this law, the judge in the Oklahoma City 
bombing case ruled, without any request from Timothy McVeigh's 
attorneys, that no victim who saw any portion of the case could 
testify about the bombing's impact at a possible sentencing 
hearing.
    The Justice Department asked the judge to exempt victims 
who would not be factual witnesses at trial, but who might 
testify at a sentencing hearing about the impact of the bombing 
on their lives. The judge denied the motion.
    The victims were then given until the lunch break to decide 
whether to watch the proceedings or remain eligible to testify 
at a sentencing hearing. In the hour that they had, some of the 
victims opted to watch the proceedings. Others decided to 
leave, to remain eligible to testify at the sentencing hearing.
    Subsequently, the Justice Department asked the court to 
reconsider its order in light of the 1990 Victims Bill of 
Rights. Bombing victims then filed their own motion to raise 
their rights under the Victims Bill of Rights. The court denied 
both motions.
    With regard to the victims' motion, the judge held that the 
victims lacked standing, and this is the crux. The judge stated 
that the victims would not be able to separate the experience 
of trial from the experience of loss from the conduct in 
question. The judge also alluded to concerns about the 
defendant's constitutional rights, the common law, and rules of 
evidence.
    The victims and the Justice Department separately appealed 
to the Court of Appeals for the Tenth Circuit. That court ruled 
that the victims lacked standing under Article III of the 
Constitution, because they had no legally-protected interest to 
be present at trial and thus had suffered no injury, in fact, 
from their exclusion.
    The victims and the Department of Justice then asked the 
entire Tenth Circuit to review that decision. Forty-nine 
members of Congress, all six attorneys general in the Tenth 
Circuit, and many of the leading crime victims organizations 
filed briefs in support of the victims, all to no avail.
    The Victims Clarification Act of 1997 was then introduced 
in Congress. That Act provided that watching a trial does not 
constitute grounds for denying victims the chance to provide an 
impact statement. This bill passed the House 414 to 13. It 
passed the Senate by unanimous consent. Two days later, 
President Clinton signed it into law, explaining that, quote, 
``When someone is a victim, he or she should be at the center 
of the criminal justice process, not on the outside looking 
in,'' end quote.
    The victims then filed a motion asserting a right to attend 
the trial under the new law. However, the judge declined to 
apply the law as written. He concluded that, and I quote, ``Any 
motions raising constitutional questions about this legislation 
would be premature and would present questions and issues that 
are not now ripe for decision,'' end quote.
    Moreover, he held that it could address issues of possible 
prejudicial impact from attending the trial by interviewing the 
witnesses after the trial. The judge also refused to grant the 
victims a hearing on the application of the new law, concluding 
that his ruling rendered their request moot. The victims then 
faced a painful decision: watch the trial or preserve their 
right to testify at the sentencing hearing. Many victims gave 
up their right to watch the trial as a result.
    Now, what is the point? The point is that there is no 
statute that you can pass that will give victims sufficient 
standing under Article III to satisfy a court, and therefore a 
constitutional amendment becomes vital if victims are going to 
have any standing to assert any rights that they might be 
given.
    So I say that to really make it clear, because I have been 
hearing over and over and over again that a statute will do it. 
Well, Members, we have tried a statute. We have tried it twice 
and both times the statute effectively was null and void in the 
court, and certainly in the appellate court.
    So if we do believe--and I do passionately--that a victim 
of a violent crime should have the right to receive notice, to 
be present, to be heard, to know when their attacker is 
released, and to restitution if ordered by a court, there is 
only one way to get there and that is through the Constitution 
of the United States of America.
    Thanks, Mr. Chairman.
    Chairman Feingold. Thank you, Senator Feinstein.
    I am going to make just a couple of comments and then start 
our first panel. In fact, I am pleased to welcome our patient 
first panel member. I welcome the Honorable John Gillis, 
Director of the Justice Department's Office for Victims of 
Crime. Director Gillis is a co-founder of Justice for Homicide 
Victims and the Coalition of Victims' Equal Rights. He also 
served four years as a member of the California State Bar 
Association's Crime Victims and Corrections Committee.
    I thank you for joining us today. I do note that we just 
received your testimony, I understand, just a little bit ago. 
In quickly reviewing it, I saw the reference, of course, to the 
fact that my State, Wisconsin, has a victims' rights 
constitutional amendment, which I supported as a State Senator.
    But I would reiterate that that had an explicit provision 
that essentially required that in no way can the constitutional 
amendment derogate or limit the existing rights of criminal 
defendants. I would suggest that that is different and much 
stronger than what the two Senators here have proposed.
    The Senator from Arizona talks about a predicate 
assumption. Now, that is a good opportunity to go back to our 
grammar lessons and to review exactly what that means, but that 
is not the same as a clear statement, a direct statement that 
defendants' rights cannot be undercut.
    In fact, the language says, ``being capable of protection 
without denying the constitutional rights of those accused of 
victimizing them.'' That, to me, isn't a statement of law. That 
is a statement of fact, which I think isn't even necessarily 
always true. I don't think it is always the case, 
unfortunately, that you can easily balance the rights of 
victims and the rights of defendants. That is a serious 
problem.
    All this is is a statement of fact, which I think is, in 
fact, incorrect in some cases. I think in most cases it is 
correct, and that is why I certainly support strong statutes 
that would protect the rights of victims.
    I would suggest that the very example that Senator 
Feinstein uses, the Oklahoma City case, proves that it is not 
the case that this amendment would guarantee that the rights of 
defendants are not limited. The judge in this case obviously 
was concerned, whether he was right or wrong on the merits, 
that what could happen here would in some way diminish the 
rights of the defendants.
    So I think that is why this has to be victims' rights 
statutes that go up against a constitutional protection for 
defendants' rights, with the understanding that I certainly 
agree with the Senators that there is far more that can be done 
to protect the rights of victims through the statutes and that 
it needs to be done. So I would simply offer that because of 
the statements that have been made at this point and the fact 
that we got this testimony just recently.
    With that, I am going to just briefly recess the hearing.
    Senator Kyl. Excuse me, Mr. Chairman. Before you do that, 
could I ask unanimous consent to put three items in the record? 
One is a letter to Senator Feinstein from Joshua Marquis, 
District Attorney in Astoria, Oregon. Another is an e-mail from 
Stephen Dole, President of Crime Victims United of Oregon. And, 
third, is a very moving statement by Susan Russell, who is 
here, a resident of Vermont who was herself a victim of a very 
brutal and violent crime and who has made a very compelling 
statement in support of our amendment. I would like her 
statement to be made part of the record at this point, as well.
    Chairman Feingold. Without objection.
    Senator Thurmond asks that his statement be submitted for 
the record, as well. I will enter his statement into the record 
and we will hold the record open for one week for any 
additional Senators.
    [The prepared statement of Senator Thurmond appears as a 
submission for the record.]
    Chairman Feingold. Senator Feinstein?
    Senator Feinstein. I would like to submit a statement by 
Professor Larry Tribe, the National Association of Police 
Organizations, the California District Attorneys, the Western 
Governors Association, the International Union of Police 
Associations, and a number of victims, if I might.
    Chairman Feingold. Without objection.
    With that, we will briefly recess.
    [The Subcommittee stood in recess from 10:35 a.m. to 10:54 
a.m.]
    Chairman Feingold. Thank you for your patience again, and 
now I look forward to the testimony of Director Gillis.
    You may proceed.

STATEMENT OF HON. JOHN W. GILLIS, DIRECTOR, OFFICE FOR VICTIMS 
       OF CRIME, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Gillis. Thank you, and good morning, Chairman Feingold 
and distinguished members of the Subcommittee. As a crime 
victim, a law enforcement officer, former Chair of the 
California Board of Prison Terms, and a citizen who works to 
uphold justice and advocates for victims' rights and services, 
I am honored to have this opportunity to present the views of 
the administration on the proposed amendment to the 
Constitution of the United States to establish fundamental 
rights for victims of violent crime.
    The administration strongly supports the concept and 
substance of the victims' rights amendment and the rights it 
will secure for victims of violent crime. There is broad-based 
support for the amendment all across the country. Democratic 
and Republican leaders, liberal and conservative scholars, and 
Americans of every persuasion have rallied in support of this 
important cause.
    As the Director of the Justice Department's Office for 
Victims of Crime, or OVC, I am committed to enhancing the 
Nation's capacity to assist crime victims and to providing 
leadership in an ongoing effort to change attitudes, policies, 
and practices, with a determination to promote justice and 
healing for victims of crime.
    Immediately following my confirmation by the U.S. Senate as 
Director of OVC, I began meeting with crime victims, victim 
advocates, and representatives of national victim organizations 
to identify emerging issues and unmet needs of victims across 
the United States.
    Not surprisingly, time and again victims attending the 
roundtable discussions have shared the agony they have suffered 
at the hands of criminals and their disappointment in learning 
the realities of our criminal justice system's view of and 
response to crime victims. Victims discussed not being notified 
of key events and, when notified, how they were not allowed to 
speak at critical stages like post-arrest release, bond 
reduction hearings, plea agreement proceedings, sentencing, or 
parole.
    I know firsthand the personal, financial, and emotional 
devastation that violent crime exacts on its victims. As a 
survivor of a homicide victim, I testify before you today with 
the unique advantage of understanding the plight that victims 
and their families face in the criminal justice system. I know 
the players and their responsibilities, and my experience has 
given me the ability to work within the system. More typically, 
however, when a person is victimized by crime, he or she is 
thrust into a whole new world in which the State's or the 
government's needs take priority.
    Chairman Feingold, as you know, on April 16 President Bush 
announced his support for an amendment to the United States 
Constitution to protect the rights of crime victims. As the 
President so eloquently stated, ``Too often, our system fails 
to inform victims about proceedings involving bail and pleas 
and sentencing, and even about the trials themselves. Too 
often, the process fails to take the safety of victims into 
account when deciding whether to release dangerous offenders. 
Too often, the financial losses of victims are ignored. And too 
often, victims are not allowed to address the court at 
sentencing and explain their suffering, or even to be present 
in the courtroom where their victimizers are being tried. When 
our criminal justice system treats victims as irrelevant 
bystanders, they are victimized for a second time.''
    Although more than 27,000 victims' rights laws have been 
enacted, victims' bills of rights have been passed in every 
State, and 32 States have passed constitutional amendments 
protecting victims' rights, victims still struggle to assert 
basic rights to be notified, present, and heard.
    The 32 existing State victims' rights amendments and other 
statutory protections differ considerably across the country. 
Further, there is no uniformity in the implementation of 
victims' rights laws in these States. A recent study, funded by 
the National Institute of Justice, found that even in States 
with strong victims' rights laws, only about half of all 
victims surveyed were notified of plea negotiations and 
sentencing hearings, a notice that is critical if they are to 
exercise their rights to seek restitution and to inform the 
court of the impact of the crime on them.
    Even in States with strong victims' rights laws or ratified 
victims' rights constitutional amendments, a victim's ability 
to assert his or her rights may be nullified by judicial 
decisions. State victims' rights laws lack the force of Federal 
constitutional law, and thus may be given short shrift. Federal 
law, however, directly covers only certain violent crimes, 
leaving non-Federal crimes to State prosecution and State law.
    Senator Feinstein has already discussed the Oklahoma case, 
but just to recap, a U.S. District Court judge presented 
victims with the choice to either attend the trial or speak at 
sentencing, despite Federal law that provides victims a right 
to be present at all court proceedings related to the offense.
    The victims and several national organizations filed an 
appeal to reverse the judge's ruling. However, the U.S. Court 
of Appeals for the Tenth Circuit affirmed the judge's ruling, 
which effectively barred from the courtroom the victims who 
intended to speak at sentencing. Congress thereafter 
intervened, passing legislation prohibiting the U.S. district 
judge from ordering victims excluded from the trials of the 
defendants.
    A Federal constitutional amendment is the only legal 
measure strong enough to rectify the current imbalance and 
inconsistencies among victims' rights laws, and can establish a 
uniform national floor for victims' rights. A Federal amendment 
to the United States Constitution is the vehicle by which 
compliance with victims' rights laws can be enforced.
    The passage of a Federal constitutional amendment will 
provide the means to make victims' rights a reality. The 
amendment will not abridge the rights of defendants or 
offenders, or otherwise disrupt the delicate balance of our 
Constitution. The protection of victims' rights is one of those 
rare instances when amending the Constitution is the right 
thing to do. With bipartisan support, we can balance the scales 
of justice for victims by establishing in the U.S. Constitution 
our basic rights. Crime victims encourage your support in our 
struggle for human dignity and fair treatment.
    That concludes my statement, and I would welcome the 
opportunity to answer any questions you might have.
    Chairman Feingold. Thank you, sir, and I will start with 
the first round. This proposed amendment has a section giving 
the attorneys for victims a right to be heard in court, and 
then lists exceptions to the amendment based on a compelling 
interest or a substantial interest in public safety or the 
administration of criminal justice.
    In other words, this amendment practically dictates that a 
dispute between a prosecutor and the victim must be resolved 
with a fact-finding hearing that would have the prosecutor 
cross-examining the very victim the prosecutor is trying to 
protect. It also means a hearing where the attorney for the 
victim will be cross-examining Government witnesses, which 
could potentially create inconsistent statements for the 
defendant's attorney to use at a later trial.
    Doesn't this amendment then in some ways simply set up a 
potential showdown in court between victims and prosecutors, 
and isn't it a showdown that sometimes the guilty will be able 
to use to their advantage?
    Mr. Gillis. In my experience as a law enforcement officer 
and working as a detective for many years, when victims were 
brought to court, when they appeared in court, they were just 
automatically excluded from court.
    I must talk about my personal experience, also. After the 
murder of my daughter, when I appeared at court I wanted to 
know what was going on in court. I was not a percipient 
witness. There was nothing that I could have testified to in 
court that would have hurt the offender or the perpetrator, but 
still I was automatically excluded from the courtroom 
proceedings.
    This is the process that goes on all across the United 
States, where victims are not able to go into court to hear 
what is taking place, when, in fact, they are not a percipient 
witness. But it does give the district attorney or the trier of 
fact an opportunity to interview that victim to find out 
whether or not they are percipient witnesses, and if they are 
and it would have an impact on the perpetrator, then they could 
be excluded.
    Chairman Feingold. If the purpose of this amendment is to 
effect the rights of victims at the Federal level, isn't it 
true that the Attorney General's guidelines for victims and 
witnesses provide at least as extensive rights in the Federal 
criminal justice system as those that are listed in the 
amendment?
    Mr. Gillis. It does not give the victim standing as far as 
the Constitution is concerned, and I think that is what we are 
trying to do with the amendment.
    Chairman Feingold. But it does outline all the various 
specific goals and protections that are wanted vis-a-vis the 
amendment. Isn't that right?
    Mr. Gillis. It does outline those things, but still the 
victim does not have standing when it comes to the 
Constitution.
    Chairman Feingold. Obviously, one of the central questions 
here, as I have raised and Senator Kyl has raised, is is this 
really a problem needing a constitutional amendment, or isn't 
it true that in many cases isn't more really an issue of 
ensuring that prosecutors will do what they should do, which is 
to pick up the phone and do what is asked of them, like 
notifying victims of court dates, sentencing hearings, and 
release dates for offenders? Isn't there a lot of the answer in 
getting prosecutors to do what they should do in this 
situation, as opposed to having to actually pass a 
constitutional amendment?
    Mr. Gillis. I wish that was the only thing. However, it is 
somewhat arbitrary, and you will find that arbitrariness from 
prosecutor to prosecutor, from county to county, from State to 
State. The victim cannot be assured that they will have the 
right to receive that information.
    Chairman Feingold. I thank you, sir, and I will turn now to 
questions from Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. Thank you very much, 
Mr. Gillis, for being here representing the Department of 
Justice and the administration.
    Let me ask you a fairly straightforward question. Do you 
believe that defendants' rights would be adequately protected 
by State and Federal statutes?
    Mr. Gillis. Not without the constitutional inclusion, if 
they were not included in the Constitution.
    Senator Kyl. If there were no Federal constitutional rights 
guaranteed for defendants, would states, and I will even add 
State constitutional provisions, but Federal and State statutes 
and State constitutional provisions alone, without Federal 
constitutional protection--would those State statutes and 
Federal statutes be enough, in your view, to protect 
defendants' rights?
    Mr. Gillis. I don't believe so.
    Senator Kyl. Is there anything to indicate a difference 
between defendants and victims?
    Mr. Gillis. No.
    Senator Kyl. Is that perhaps one of the reasons why we are 
here supporting a constitutional amendment for victims' rights?
    Mr. Gillis. That is correct.
    Senator Kyl. Let me read something that the predecessor 
Attorney General said and ask if you agree, a statement that 
then-Attorney General Janet Reno made. She said, ``Several of 
the rights we would guarantee in such an amendment,'' meaning a 
victims' rights amendment, ``would provide law enforcement with 
additional benefits on top of the benefit of victims' increased 
resolve to participate in the process. If victims are notified 
of public proceedings and allowed to attend, they will be able 
to alert prosecutors to distortions of fact in defendants' and 
defense witnesses' testimony. Allowing victims to be heard 
during critical phases of the trial will increase the 
likelihood that courts will engage in better decisionmaking. 
Victim testimony can provide courts with additional relevant 
information and impress upon them that an actual human being 
has suffered as a result of a defendant's conduct. Having had 
an opportunity to be heard, victims will likely be better able 
to accept a court's decision, whatever it may be. Notice of 
release of the defendant or offender will enable victims to 
take precautions that may prevent the commission of more crime. 
By holding offenders financially responsible through 
restitution for the harm they caused, they will be more clearly 
required to acknowledge and accept responsibility for that 
harm.''
    Is that a statement from the previous administration that 
you can subscribe to?
    Mr. Gillis. Yes, definitely.
    Senator Kyl. So there are benefits, in addition to the 
direct benefits for victims and victims' families, to the 
administration of justice generally and even to the prosecutors 
in the prosection of a case?
    Mr. Gillis. That is correct, yes.
    Senator Kyl. Again, I thank you very much. I note that the 
administration's strong support for this amendment has given a 
lot of impetus to a renewed effort around the country by 
victims' organizations who were feeling that perhaps they had 
been forgotten, but with this new degree of support, there is a 
new resolve to try to push this process along. Therefore, I 
very much appreciate your involvement and I appreciate the 
President's support for our amendment. Thank you for being here 
today.
    Chairman Feingold. Thank you, Senator Kyl.
    Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman. I would 
like to enter into the record a new opinion from the Court of 
Appeals of Maryland in the case of Sherri Rippeon and John 
Dobbin, Jr. This was filed July 9, 2002, so it is a very new 
circuit court opinion.
    This is the case of the parents of a murdered infant who 
unsuccessfully sought in the Circuit Court for Howard County to 
enforce provisions of Maryland's victims' rights law. The 
judges found that, ``The appellants' case lacks the 
justiciability required to resolve the issues raised here.'' It 
says, ``Specifically, we find that this appeal is moot and 
affirm the decision of the court below.''
    The opinion goes on to point out, ``Only the defendant may 
appeal the final judgment and sentence. Victims must seek 
enforcement of their rights in the only way provided under the 
Maryland Code, and that is by filing for leave to appeal in a 
separate proceeding.'' That is on the question of standing.
    It also makes another point here, and I found it, but I 
just lost it, but effectively that they have no standing. I 
can't find the exact wording, but I would like to, if I might, 
enter this into the record.
    Chairman Feingold. Without objection.
    Senator Feinstein. Mr. Gillis, I want to thank you very 
much for your support, for your testimony, and really for the 
active help of the Justice Department and the administration. 
I, for one, am very grateful for that.
    Let me ask this question: How often do you believe will a 
victim's constitutional right actually conflict with a 
defendant's right, and can you indicate to us what you think 
those specific situations might be?
    Mr. Gillis. I would be hard-pressed to come up with a 
situation where I think the victim's rights would conflict with 
those of the perpetrator. Nothing comes to mind. The offender's 
rights are well-protected under the Constitution. If the 
victim's rights were protected under the Constitution, I see 
that there would be no conflict.
    Senator Feinstein. I happen to agree with that. It happens 
all the time. I mean, in the First Amendment, for example, 
press are allowed in a courtroom. If there is a question, the 
judge certainly considers it and balances the rights. I don't 
see either why this is a different situation. I know you have 
had access to the courtroom. I have, as well.
    Let me just thank you very much for your testimony.
    Mr. Gillis. Thank you.
    Chairman Feingold. Thank you, Director. I would just make 
the comment that if there is no conflict with defendants' 
rights, I am puzzled why we need a organization amendment. What 
is the barrier that the Constitution is going to erect to the 
assertion of these rights in a statute? That is puzzling to me.
    At this time, without objection, I will introduce into the 
record editorials and statements from organizations in 
opposition to the proposed amendment.
    I thank you very much, Director, and we will turn to our 
next panel of witnesses.
    [The prepared statement of Mr. Gillis appears as a 
submission for the record.]
    Senator Kyl. Mr. Chairman, could I just, for the record, 
read one statement in? It doesn't go directly to Mr. Gillis' 
testimony, but it does go to the comment you just made.
    Chairman Feingold. Senator Kyl.
    Senator Kyl. Thank you. Harvard Law Professor Laurence 
Tribe I referred to before and quoted with respect to the 
language of our amendment. He speaks to the protection of 
defendants' rights, I think, and the insufficiency of State 
statutes as also relevant. He testified before this Committee 
in 1999 that, ``Existing statutes and State amendments are 
likely, as experience to date sadly shows, to provide too 
little real protection whenever they come into conflict with 
bureaucratic habit, traditional indifference, sheer inertia, or 
any mention of an accused's rights, regardless of whether those 
rights are genuinely threatened.''
    Since he is not here to testify in person, I thought it was 
important to have that statement in the record.
    Chairman Feingold. Well, I respect Professor Tribe very 
much. All I can say is if that is the case, I don't know why we 
wouldn't include an explicit provision in the constitutional 
amendment that says that this will not derogate from 
defendants' rights.
    Senator Kyl. I think if Senator Feinstein and I thought 
that would win your vote and the vote of other opponents to 
support the amendment, we would be much more inclined to 
consider it.
    Chairman Feingold. As I have indicated in previous years, I 
am willing to discuss some of that with you. In fact, I 
offered, I believe, an amendment in the previous consideration 
of this along these lines which I believe was opposed. So this 
is a serious matter.
    I have indicated that I believe this amendment is not by 
any means an outrageous proposal. It is less troubling to me 
than some of the other constitutional amendments that I have 
seen proposed here, but I regret that after all these concerns, 
all we have here is what you described as a predicate 
assumption, as opposed to a direct statement that this will not 
undercut the basic rights of defendants that have been embodied 
in our Constitution for over 200 years.
    Senator Feinstein. Does that offer still exist? We would be 
happy to sit down and talk with you.
    Chairman Feingold. I will sit down and talk.
    Senator Feinstein. I don't look at this as a predicate. It 
is in Article I of the amendment and if we can strengthen it, 
we would be delighted to do that.
    Chairman Feingold. I know that this attempt has been made 
in the past and I will be happy to sit down and discuss it 
again.
    Senator Feinstein. Thank you.
    Chairman Feingold. It is a very serious matter and I know 
you take it seriously, as well.
    Now, we will turn to the second panel of witnesses. As we 
get organized, I will introduce the first witness. Our first 
witness is Ms. Arwen Bird. Ms. Bird is the co-founder and 
Executive Director of Survivors Advocating for an Effective 
System, in Portland, Oregon. Ms. Bird has worked as a legal 
assistant for both prosecuting and defense attorneys in Oregon.
    I thank you for joining us today and you may proceed with 
your testimony.

STATEMENTS OF ARWEN BIRD, SURVIVORS ADVOCATING FOR AN EFFECTIVE 
                    SYSTEM, PORTLAND, OREGON

    Ms. Bird. Thank you. Good morning, Chairman Feingold, 
members of the Senate Judiciary Committee. Thank you for this 
opportunity to testify.
    My name is Arwen Bird and I am the Director of SAFES, 
Survivors Advocating for an Effective System. I become before 
you to add the voice of crime survivors to the many groups 
opposed to Senate Joint Resolution 35, the Victims' Rights 
Amendment.
    Survivors Advocating for an Effective System was founded 
three years ago by myself, a survivor of a DUI crash, and two 
other women, both of whom survived the murder of a loved one. 
Our mission, in part, is to empower survivors to advocate for 
restorative justice, the concept of a balanced restorative 
approach to crime. This is why I am here today.
    As advocates for survivors of crime, SAFES works to ensure 
that we participate in and are heard by our criminal justice 
system. We believe that survivors have the right to 
restitution, compensation, and services to help us heal after 
victimization. We are actively working with State agencies and 
fellow advocates to make certain that survivors have access to 
all of these provisions. However, amending the United States 
Constitution is not necessary to guarantee the rights of crime 
survivors.
    Crime survivors want to be heard, we want to feel safe, and 
we want our criminal justice system to hold offenders 
accountable. If you, members of the United States Senate, want 
to help survivors heal after crime has occurred, fund programs 
and agencies designed to help survivors get back on their feet 
after victimization. Increase Federal funding for State 
agencies that are working directly with survivors of crime. 
Consider the concept of a parallel system of justice proposed 
by Susan Herman, of the National Center for Victims of Crime, 
where survivors, regardless of the status of the offender, 
could get the assistance they need to get their lives back in 
order. Work to enforce the rights of crime victims that are 
already guaranteed. Do not spend your time and energy degrading 
the rights of accused people. That does nothing to help us.
    The provisions in this amendment are aimed at involving 
survivors in the criminal justice system. In a general sense, 
we agree with this aim. Moreover, we believe that considering 
the perspective of crime survivors is necessary to a balanced 
criminal justice system.
    However, including our perspective and facilitating our 
participation can be ensured through Federal statutes. Every 
State already has at least statutory rights for survivors, and 
many States have constitutional amendments. A Federal amendment 
would do nothing to improve upon these rights. Greater effort 
should be made in enforcing these existing laws rather than 
creating new ones.
    As survivors of crime who are also United States citizens, 
we benefit from the fundamental protections that are guaranteed 
through our State and Federal constitutions. the Federal Bill 
of Rights ensures certain protections for all citizens. This 
includes those who have been victimized by crime. The amendment 
before you would do nothing to improve upon our rights as 
survivors. Sadly, this amendment would only erode our rights as 
citizens.
    Thank you for hearing my testimony today and I look forward 
to answering any questions you may have.
    [The prepared statement of Ms. Bird appears as a submission 
for the record.]
    Chairman Feingold. Thank you very much, Ms. Bird. We 
appreciate your testimony.
    Our next witness is Roberta Roper. Ms. Roper is Co-
Chairperson of the National Victims Constitutional Amendment 
Network, and Executive Director of the Stephanie Roper 
Committee and Foundation, a Maryland victim advocacy 
organization.
    Ms. Roper, we welcome you to the panel. Thank you for being 
here and you may proceed.

STATEMENT OF ROBERTA ROPER, EXECUTIVE DIRECTOR, STEPHANIE ROPER 
    COMMITTEE AND FOUNDATION, INC., UPPER MARLBORO, MARYLAND

    Ms. Roper. Good morning, Mr. Chairman. I am honored today 
to speak for everyday Americans who place their trust in our 
system and their dependence on government to do the right thing 
for justice. But most importantly, I speak for those whose 
voices can no longer be heard--our sons, our daughters, our 
parents, our spouses, our brothers and sisters and friends.
    In the course of my testimony, I ask you to remember this 
important lesson, that any one of us can become a victim of 
crime and suffer the secondary victimization that I will 
describe in some of the examples. I ask you to hear my 
testimony as a parent, as a spouse, as a brother or sister, and 
ask how you would want your loved one to be treated should they 
become a victim of crime and suffer the consequences that most 
of these folks have.
    I want to be clear. Providing crime victims with protected 
rights in our Constitution is not a complicated legal issue. It 
is a human rights issue that deserves ensuring that these basic 
human rights to fundamental fairness are protected under the 
Constitution. These are rights that every person accused or 
convicted of crime deserves and enjoys. Yet, everyday Americans 
are appalled and disbelieving to learn that, unlike criminal 
defendants, they have no similar rights.
    Let us also be clear about the need for this amendment. 
There are those who say the Constitution is a sacred document 
that should never be amended. I ask you to remember the wisdom 
of our Founding Fathers. The Framers of the Constitution 
understood that the document they were creating would need to 
change as the needs of society require change. They were 
creating a more perfect Union, not a perfect one.
    That wisdom allowed our Constitution to abolish slavery and 
to provide voting rights to women. Those human rights could not 
be sufficiently protected by State or Federal laws. Likewise, 
victims' rights cannot be sufficiently protected by State or 
Federal laws.
    There are those who say we should focus on strengthening 
existing laws. Well, we can tell you that more than two decades 
of effort in securing State and Federal laws are evidence of 
the failure to provide victims with sufficiently protected 
rights, and laws enacted by this Congress are the best evidence 
of this failure, as has been cited earlier, with the Victim 
Allocution Clarification Act of 1997. Federal laws, no matter 
how strong, will only apply to a small section of victims, not 
the vast majority of victims.
    The whole history of our Nation has taught us that basic 
human rights must be under the Constitution. As we have heard, 
the language today has been carefully crafted to protect the 
rights of the accused, while enabling victims and survivors of 
criminal violence to have minimal rights.
    I speak to the need for this amendment from personal 
experience, as well as after 20 years of advocacy and service 
to thousands of crime victims in my home State of Maryland. 
Like many advocates, the catalyst for my action was my family's 
experience with the criminal justice system when our oldest 
child, our beloved daughter Stephanie, was kidnapped, brutally 
raped, tortured and murdered in 1982 by two strangers who came 
upon her disabled car on a country road near our home.
    Like countless victims and survivors of that era, we 
discovered that, unlike our daughter's killers, we had no 
rights to be informed, no rights to attend the trial, and no 
rights to be heard at sentencing. Place yourself in that 
nightmare. Imagine how you would feel to be shut out of the 
trial of the accused of your loved one for no good cause.
    We were subpoenaed as the State's first witnesses, but 
simply recalled a last family meal and the automobile our 
daughter was driving. Did we know the individuals charged? Did 
we have knowledge of the events that led to our daughter's 
abduction and murder? Did the State advocate for our right to 
remain in the courtroom, or did the judge ask if there were 
reasons to sequester us? The answer to all those questions was 
no.
    Rather, the rule on witnesses was invoked, unchallenged, 
and imposed. Instead of hearing the truth and seeing justice 
imposed, we were banished from the most important event of our 
lives. Finally, at sentencing, we hoped to use what was then 
being proclaimed as the first victims' rights law; that is, a 
victim impact statement at sentencing. Instead, the defense 
objected on the grounds that anything I had to say was 
emotional, irrelevant, and probable cause for reversal on 
appeal. After a lengthy bench conference, the court agreed. 
While our daughter's convicted killer had unlimited 
opportunities for himself and others to speak to the court on 
his behalf, we were silenced. No one could speak for Stephanie.
    Like countless other families then and now, we struggled 
not only with the devastating effects of the crimes committed 
against our loved ones, but the consequences that were in many 
ways worse, being shut out of the criminal justice system we 
depended upon and trusted.
    In trying to rebuild our broken lives, the greatest 
challenge we faced was trying to preserve hope for our children 
when the system we had taught them to believe in had failed us. 
That challenge is forever etched in my mind by the memory of 
the day one of our sons came home from school, explaining that 
he could no longer pledge allegiance to the flag with his 
classmates because liberty and justice for all did not include 
us.
    You may conclude that because this happened 20 years ago, 
this would surely not happen today. You would also correctly 
conclude that the progress that has been made has been 
revolutionary, both on the State and Federal level, and 
constitutional amendments passed in so many States. The sad 
reality remains that victims' rights are paper promises, too 
often ignored, too often denied.
    None of the State or Federal laws are able to match the 
constitutionally-protected rights of offenders. Studies also 
demonstrate that the system's bias against victims is even more 
pronounced against racial minorities and the poor, who 
constitute the largest group of victims of violence.
    I want to give you some examples of victims, some of whom 
are here today, whose rights have been violated. One is Dawn 
Sawyer Walls. Dawn was six months pregnant and the manager of a 
convenience store when a robber with a sawed-off shotgun 
ordered her to lie face down as he emptied the store's cash 
drawer. In violation of Maryland law, Dawn was not notified 
when a plea agreement was struck. As a result, and in violation 
of Maryland law, she was not present in court to give a victim 
impact statement. She was not able to ask for restitution from 
the offender. The disposition was characterized as a good 
outcome, and besides, she was told, you didn't suffer physical 
injuries. The trauma of that event had a severe financial 
impact on her because she was unable to return to work.
    Teresa Baker is also present. When her only son was 
murdered, she was present in court, had fulfilled the 
notification request, and heard the court impose a sentence of 
30 years when the offender pleaded guilty to second-degree 
murder. She heard the judge impose the maximum sentence, except 
no one explained to Teresa that under the terms of the American 
Bar Association plea the convicted offender would be freed in 
less than three years. She only learned about his release by 
chance. That painful discovery prompted Teresa to ask why she 
wasn't told the truth of the terms of the plea agreement and 
the release.
    Cecelia and Dexter Sellman are also here. Their son was an 
honor roll student when he was shot down and killed by two 
young men. The Sellmans trusted the system and relied on it to 
bring them a measure of justice, and asked for restitution, not 
for revenge, not to replace their loss, but for some of their 
out-of-pocket expenses and to hold the offenders accountable. 
The State flatly told Cecelia that they would not request 
restitution. This is a violation not only of victims' rights 
under Maryland law, but an obligation of the prosecuting 
attorney.
    Sherri Rippeon and John Dobbin were mentioned by Senator 
Feinstein, and the opinion that has been submitted into the 
record. Their experience is the most compelling, powerful 
example of why this amendment is needed, and it is a recent 
decision, having coming out on July 9.
    Two-and-a-half years ago, their infant daughter, Victoria 
Rose, died of blunt force trauma inflicted by their 
babysitter's boyfriend. They sought compliance with Maryland 
law, as required, filed a notification request form, were 
excluded from the trial as observers even after they filed a 
pro se demand for rights form, and then took remedial action 
that applies under Maryland law; that is, filing leave to 
appeal.
    As you have heard, the Maryland Court of Special Appeals 
has given them yet another failure, saying that on the one hand 
these victims are the proper parties and have sought 
enforcement of their rights in the only way provided under 
Maryland law, but at the same time has failed to give them an 
effective remedy, saying that the issue must be dismissed as 
moot.
    How would a victims' rights amendment help them? First of 
all, history has shown that once a right is in the 
Constitution, it is applied. That is why defendants have no 
trouble exercising their rights. But with an amendment and if 
their rights were not applied, Congress and the State could 
provide emergency proceedings.
    It is important to stress that the amendment before you has 
little to do with the punishment of offenders or increasing or 
decreasing funding for victim services, but everything to do 
with how we treat people. Treating crime victims with respect 
and not excluding them from the proceedings arising from the 
crimes committed against them are separate and distinct.
    I would point out Marsha Kite, who is here, because Marsha 
Kite was a survivor of an Oklahoma City bombing victim who was 
excluded from observing the trial and excluded from providing a 
victim impact statement because she opposes capital punishment.
    There are those who have also said we should just include 
Federal incentives for better funding. Does anyone truly 
believe that we should be dependent on the whim of Federal 
incentives for funding?
    Chairman Feingold. Ma'am, I am going to have to ask you to 
conclude.
    Ms. Roper. I will.
    Chairman Feingold. I should have said that people should 
limit their statements to five minutes. I did not do that, so I 
have given you over ten minutes.
    Ms. Roper. I am sorry.
    Chairman Feingold. It is an important statement, so please 
continue.
    Ms. Roper. I just want to conclude that I ask you to listen 
to the people of this country. We ask you to remember that the 
Constitution belongs to the people. Let the Constitution 
protect the people of this Nation.
    Thank you very much.
    Chairman Feingold. Thank you, Ms. Roper, for your powerful 
statement. Of course, your entire statement will be included in 
the record, and we appreciate your testimony.
    [The prepared statement of Ms. Roper appears as a 
submission for the record.]
    Chairman Feingold. Our next witness is Julie Goldscheid. 
She is the General Counsel for Safe Horizon, a non-profit 
victims assistance organization. Ms. Goldscheid once served as 
a senior staff attorney for the now Legal Defense and Education 
Fund, and has extensive experience arguing gender-motivated 
violence cases.
    It is my pleasure to welcome you, Ms. Goldscheid, and you 
may proceed.

 STATEMENT OF JULIE GOLDSCHEID, GENERAL COUNSEL, SAFE HORIZON, 
                       NEW YORK, NEW YORK

    Ms. Goldscheid. Thank you. Good morning, Mr. Chairman, 
Senator Kyl, Senator Feinstein, and thank you for providing 
Safe Horizon the opportunity to testify today.
    As you heard, I am Julie Goldscheid. I am General Counsel 
of Safe Horizon, which is the Nation's leading victim 
assistance organization. Our mission is to provide support, 
prevent violence, and promote justice for victims of crime and 
abuse, their families and communities.
    Safe Horizon assists over 250,000 crime victims each year 
through over 75 programs located in all five boroughs of New 
York City. Everyday, in our family and criminal court programs, 
our police programs, our domestic violence and immigration 
legal services programs, our domestic violence shelters, and 
our community offices, our staff of over 900 inform victims 
about their rights, support them with counseling and practical 
assistance and, when necessary, advocate to ensure that their 
rights and choices are respected.
    In the aftermath of the September 11 terror attacks, we 
have provided crisis intervention, support counseling, 
information and referrals, and service coordination. We have 
distributed nearly $100 million in financial assistance to over 
45,000 victims.
    While we are ardent supporters of victims' rights, we 
oppose the proposed victims' rights amendment out of a concern 
that it will not enhance and, in fact, could impair crime 
victims' abilities to meaningfully participate in the criminal 
justice system.
    Our opposition is informed by the victims we serve, who are 
primarily people of color living in economically depressed 
urban neighborhoods and who face complex challenges in 
asserting their rights. Enhancement and vigorous enforcement of 
State protections and Federal statutory rights rather than a 
constitutional amendment is the best way, in our view, to 
advance their concerns.
    As you have heard this morning, every State, including New 
York, has enacted statutory or constitutional protections for 
crime victims. While in some cases those provisions could be 
improved, victims' overwhelming need is for enforcement of 
existing rights. Statutory frameworks requiring officials to 
take steps such as notifying victims about court proceedings 
can be enhanced and must be fully enforced, and services for 
victims need support.
    When so much remains to be done to enforce existing 
victims' rights provisions and to expand the services so vital 
to victims, we find it difficult to justify the extensive time 
and resources needed to pass a Federal constitutional 
amendment.
    Moreover, while our clients' interests and rights such as 
notice and participation are critical, they are not the same as 
the concerns of defendants who face the potential loss of 
fundamental rights and liberty. The risk of unwarranted State 
power is a particular concern for those, like many of our 
clients, whose experience is compounded by race, gender, or 
other forms of discrimination. In fact, many of our clients 
strongly support vigorous safeguarding of defendants' 
constitutional rights.
    Safe Horizon is particularly concerned about the potential 
impact of the proposed amendment on the approximately 200,000 
domestic violence victims we serve every year. Batterers 
frequently make false claims of criminal conduct which often 
result in the true victim's arrest.
    Under the proposed amendment, a batterer could be accorded 
victim status and could benefit from all the proposed 
constitutional rights. The same concern applies to cases in 
which domestic violence victims strike back at their batterers 
in self-defense, as well as to dual arrest cases or cases 
resulting from misapplication of mandatory arrest or mandatory 
prosecution policies.
    We should learn from the history of victims' rights reform 
that flexible frameworks are essential to serving victims' 
needs. Mandatory arrest laws are one case in point. They were 
first enacted in response to widespread reports that police 
failed to take domestic violence cases as seriously as similar 
cases involving similar violence between strangers. This led to 
dual arrests, and primary aggressor statutes were enacted in 
response. This illustrates the way that statutory approaches, 
which provide the flexibility to make changes, are needed to 
respond to this problem. A Federal Constitution, which takes 
years to modify, does not.
    Our position regarding the proposed amendment remains firm 
in the aftermath of the September 11 attacks. If anything, our 
experience serving the range of victims affected--family 
members, injured people, displaced residents, displaced 
workers--highlights the need to strengthen statutory 
protections, mandate enforcement of existing laws, and support 
the range of services and benefits crime victims need.
    We are particularly concerned about clients who are 
undocumented, who seek assurance that they won't be penalized 
as a result of seeking assistance from private and government 
agencies. These experiences reinforce the importance of 
carefully balancing defendants' and victims' rights.
    In conclusion, the proposed constitutional amendment may be 
well-intentioned, but good intentions do not guarantee just 
results. After careful consideration, we have concluded that 
the proposed amendment would be at best symbolic and at worst 
harmful to some of the most vulnerable victims.
    Safe Horizon looks forward to working with all those 
concerned about victims' rights to advance legislative and 
policy responses that most fully respond to victims' needs.
    Thank you. I would be pleased to answer any questions.
    [The prepared statement of Ms. Goldscheid appears as a 
submission for the record.]
    Chairman Feingold. Ms. Goldscheid, thank you very much for 
your testimony.
    Our next witness is Roger Pilon. He is the Vice President 
for Legal Affairs and the Founder and Director of the Center 
for Constitutional Studies at the Cato Institute. He served in 
the State and Justice Departments in the Reagan administration 
and has taught at Stanford's Hoover Institution.
    Mr. Pilon, welcome and thank you for being here. You may 
proceed.

 STATEMENT OF ROGER PILON, DIRECTOR, CENTER FOR CONSTITUTIONAL 
           STUDIES, CATO INSTITUTE, WASHINGTON, D.C.

    Mr. Pilon. Well, thank you very much, Mr. Chairman, and 
thank you for inviting me.
    Mr. Chairman, distinguished members of the Committee, I am 
here to testify in opposition to this amendment. In doing so, 
however, I want to be very clear that I support entirely the 
aims of those who support this amendment. It is just that I 
don't think that this is the best way to go about it.
    I would ask that my prepared testimony be entered into the 
record, Mr. Chairman.
    Chairman Feingold. Without objection.
    Mr. Pilon. I am going to approach the issue somewhat 
differently in my oral remarks.
    Are victims of crime too often forgotten by America's 
criminal justice system? Absolutely. No one doubts that victims 
of crime face a daunting legal situation. In places where 
municipal services are barely working such as in the District 
of Columbia, crimes often are not even investigated. But in 
most places, once investigators take over a case, victims are 
remembered only when they are useful to the case. That leaves 
crime victims to fend for themselves.
    What is it victims want? Basically, there are two things. 
They want, first, to be made whole insofar as that is possible, 
and in most cases they want wrongdoers punished. Unfortunately, 
our system as it has evolved is stacked heavily toward the 
second goal, which leaves victims on their own.
    There was a time centuries ago, as Senator Feinstein 
mentioned in her opening remarks, when crime was treated mostly 
as a personal matter. Victims prosecuted wrongdoers in a way 
that focused primarily on righting the wrong and on making the 
victim whole again. When the king started taking over the 
prosecution, however, and prosecuting for a breach of the 
king's peace, all of that changed. The focus shifted from the 
victim's interest to the public's interest.
    Thus, today we have two proceedings. The State prosecutes 
those charged with crimes and, if they are found guilty, locks 
them up to punish and to preserve the peace. Once that is done, 
the victim can bring a civil action against the wrongdoer, but 
the chances of being made whole by someone locked away are 
usually slim.
    Still, it is important to keep in mind that a crime leads 
to the possibility of two legal proceedings--the State's action 
against the accused in the name of the people, to punish and 
preserve the peace, and the victim's action against the 
accused, to be made whole again. Recall the O.J. Simpson case. 
Even when the State failed in its effort to get a conviction, 
the victims were able to secure a civil judgment.
    The problem, however, is that the State today is the 
dominant figure. At every turn, its interests trump the 
interests of the victim. Unless you are lucky enough to be 
wronged by a wealthy criminal, the king goes first and you get 
the scraps. As a practical matter, of course, that may be the 
best we can do in many cases, especially where the aim of 
getting a violent criminal off the streets indeed should trump 
the individual interest.
    But too often, in cases that lend themselves to it, the 
system fails to search for creative remedies that would take 
the interests of the victim into account first. The victim is 
simply forgotten in the name of putting the criminal away. It 
may be time, then, to rethink our entire approach to crime.
    In many cases, we may want to put the victim first, not the 
State. Among other things, that would bring what is really at 
issue into focus. It is not simply that the criminal committed 
some abstract wrong against the people. More important, he 
committed a real wrong against a real person. He needs to take 
responsibility for that and for the damage that now needs to be 
repaired to the extent that is possible. In short, we need to 
get real about crime, to bring criminal and victim face to 
face.
    Each crime, however, is unique. Some will lend themselves 
to such an approach, others will not. That suggests that we 
need to be flexible, to learn from experience, and to be as 
close to the individuals involved as possible. But that is 
precisely why we don't want to do this through a constitutional 
amendments. Amendments, which are difficult to enact and 
difficult to retract, set things in stone. Statutes, by 
contrast, can be easily changed with experience. Fortunately, 
most States have addressed this issue today.
    But amendment supporters say the problem is deeper, that 
there is a constitutional imbalance between the rights of 
defendants and the rights of victims. The Constitution lists 
numerous rights of defendants, they say, but is silent about 
victims. That is true, but not without reason, which takes us 
to the very purpose and structure of the Constitution.
    As the Declaration makes clear, the fundamental purpose of 
government is to secure our rights, including rights against 
criminals. Toward that end, the Constitution authorizes power, 
but it also limits power, nowhere more clearly than toward 
defendants. The Founders wanted a government strong enough to 
carry out its function, but they also wanted it not to violate 
rights in the process of doing so.
    In fact, they were especially concerned to limit the police 
power of government, the power to secure rights, for they knew 
from experience that in the name of so basic and worthy an end, 
great abuse might occur. That is why they left the police power 
almost entirely in the hands of the States, where it was closer 
to the people.
    It would be anomalous, then, to have a Federal 
constitutional amendment addressing the rights of crime victims 
when there is so little Federal power to begin with to address 
the problem of crime. It would be one thing if, in connection 
with its police power, the Federal Government were required to 
attend to the rights of victims. But except in limited 
circumstances, there is no general Federal police power. Thus, 
the constitutional rights of defendants makes perfect sense. 
They are restraints on government power. The Federal Government 
may enforce customs laws, for example, but it can't do it by 
introducing evidence gained from warrantless searches.
    Given the defensive way we constituted ourselves, then, it 
is not surprising that the rights of crime victims are not 
explicitly in the Constitution, but that doesn't mean they are 
not there. The Seventh Amendment invokes the common law, and 
the rights of victims are at the core of that law.
    Thus, the primary way victims vindicate their rights is 
through the civil, not the criminal law. It is the state's 
business to protect us from criminals and to punish them. It is 
our business to vindicate our rights to be made whole. 
Vindication may be achieved partially through the criminal 
proceeding, of course, for most victims have an interest, and 
even a right, in seeing criminals punished. But that forum 
belongs primarily to the people, whose interests and rights may 
not be identical to those of the victim.
    Sometimes, the prosecutor will want to put a criminal away, 
for example, but other times he may want to plea-bargain to 
reach other, more dangerous criminals who are of no concern to 
the victim. It is crucial, therefore, that there be two forums, 
criminal and civil, for there are two sets of interests at 
issue and they are not always harmonious.
    In my prepared testimony, Mr. Chairman, I go through some 
examples of the conflicts between those two sets of interests. 
I would refer you to that and I will just sum up right now by 
first raising a point that has been raised in these 
proceedings, namely, that we need to elevate these rights to 
the constitutional level and that will ensure that they are 
protected. That will not ensure that they are protected. After 
all, property rights are there in the Constitution and they are 
violated every day by no less than the Federal Government.
    Even the First Amendment is not immune to attack from--dare 
I say, Mr. Chairman--this Congress with respect to such matters 
as campaign finance.
    Chairman Feingold. Now, you are getting in trouble.
    [Laughter.]
    Chairman Feingold. It sounded good before that.
    Mr. Pilon. But I digress. There is, in short, a disturbing 
air of aspiration about this amendment. Like the generous 
legacy in a pauper's will, it promises much, but delivers 
little. Clearly, rights without remedies are worse than 
useless; they are empty promises that, in time, undermine 
confidence in the document that contains them; here, the 
Constitution.
    Remedies ordinarily are realized through litigation. One 
wants to know, therefore, how victims will or might litigate to 
realize their rights and what their doing so implies for other 
rights in our constitutional system. Several scenarios under 
this amendment are possible. None is clear. Yet all, by virtue 
of being constitutionalized, may make the plight of victims not 
better, but worse.
    We owe more than empty promises to those for whom the 
system has already failed. What we owe victims is a better 
opportunity, where appropriate, to confront those who have 
wronged them so that they might work out a plan of restitution 
for the benefit of both victim and criminal. That will take 
enlightened legislation and enlightened prosecutors, and that 
is the business primarily of the States. It is not the business 
of a constitutional amendment.
    Thank you.
    [The prepared statement of Mr. Pilon appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Pilon, for your 
interesting perspective.
    Our next witness is Steven Twist. Mr. Twist is General 
Counsel for the National Victims Constitutional Amendment 
Network, in Scottsdale, Arizona. He also serves as Vice 
President for Public Policy for the National Organization for 
Victim Assistance and is an adjunct professor of law at the 
College of Law at Arizona State University.
    Thank you for testifying, Mr. Twist, and you may proceed.

STATEMENT OF STEVEN J. TWIST, GENERAL COUNSEL, NATIONAL VICTIMS 
     CONSTITUTIONAL AMENDMENT NETWORK, SCOTTSDALE, ARIZONA

    Mr. Twist. Mr. Chairman, let me begin by thanking you for 
your opening remarks and for your willingness to renew a 
dialogue with us on the appropriate text for an amendment. We 
certainly want to engage in that dialogue with you and we very 
much appreciate it.
    If this indeed is a pauper's will, as Mr. Pilon has 
suggested, it is hard to see how it could be such an assault on 
the Bill of Rights at the same time. I would say to my good 
friend that when a woman who is raped is not given notice of 
the proceedings in her case, when the parents of a murdered 
child are excluded from court proceedings that others may 
attend, when the voice of a battered woman or child is silenced 
on matters of great importance to them and their safety, on 
matters of early releases and plea bargaining and sentencing--
when these things happen, it is the government and its courts 
that are the engines of these injustices.
    Sadly, what prevents the elimination of these injustices 
all across our country, what prevents the establishment of some 
very simple rights to notice and presence and a simply voice at 
some key proceedings from becoming the law of the land for all 
Americans is simply fear, fear or change, a hide-bound clinging 
to the status quo even as the opponents of the amendment 
acknowledge that the status quo is unjust and doesn't often 
enough protect the rights of victims.
    Also, Mr. Chairman, it evidences a profound distrust of our 
courts to be able to strike fair balances in giving full effect 
to the rights of victims and the rights of defendants in every 
criminal case. I daresay were the critics of S.J. Res. 35 to 
apply the same psychology of fear of change and the same 
standards of precision to the Constitution itself, the Framers 
in Philadelphia would be ordering iced lattes during this 
afternoon's break in debate and the Bill of Rights would be a 
distant, unreachable dream.
    When exactly is a person the accused under the terms of the 
Constitution? Why is there no definition of a speedy trial? 
What process exactly is due under the Constitution? What 
exactly is an unreasonable search, and when is cause probable? 
No constitutional amendment will meet the precision called for 
by the critics, and I suspect they know that because in the end 
fear frustrates change and it is change they oppose.
    For crime victims, the struggle for liberty--and it is 
that, liberty--has gone on long enough. Too many for too long 
have been denied basic rights to fairness and human dignity. 
The rights we seek are modest. Indeed, our opponents rarely 
oppose them in the abstract. But without grounding in our 
fundamental charter, they are not meaningful or enforceable or 
beyond the sweep of shifting judicial or legislative winds.
    The critics say let the States pass laws, let them even 
pass State constitutional amendments, but the U.S. Constitution 
is too important a document to trifle with mere crime victims. 
Doubtless, you will hear, and indeed have heard these words 
today, but they have no answer when confronted with the real 
cases across this country where State laws, even State 
constitutional amendments, and even Federal statutes simply 
don't work.
    Much of the criticism that we have heard is ungrounded in 
the real world of the courts, where I live and practice 
representing crime victims everyday. We have heard, Mr. 
Chairman, that the rights that we propose will degrade the 
rights of the accused. No less a constitutional scholar than 
Laurence Tribe has said that is simply not the case.
    We have heard and will hear that the rights that we seek, 
the simple rights to notice and presence and an opportunity to 
be heard, undermine and threaten law enforcement or 
prosecution. I would submit, Mr. Chairman, that those critics 
look to Arizona, look to California, look to places where 
victims are regularly involved in the process. No such dreadful 
consequences, dire consequences occur.
    Victims are afforded rights to be present, to be heard on 
plea agreements. In Arizona, the right to be heard at pleas has 
not dramatically in any way affected the number of cases that 
go to trial or the number of pleas that are accepted. Victims 
are empowered by this right, and that is all we seek. I say to 
the critics, Mr. Chairman, look at the country and the real 
world. Don't speculate about fear. Look at the real world where 
these cases exist.
    One final comment, Mr. Chairman. In response to what I just 
said, it may be said, well, Mr. Twist, if these are working in 
the States, then why do we need to amend the fundamental 
charter of our country?
    I would say to those who would raise that question, because 
these need to be the law of the land, the birthright of every 
American from Maine to California. These rights need to follow 
crime victims wherever they go, and the only way to do that--
and it is the same insight that James Madison had when he 
offered the Bill of Rights--the only way to do that is to make 
them part of the character of the Nation, part of the 
fundamental law, so that they truly will become a part of our 
culture. They are not today and, sadly, as Ms. Roper's stories 
prove, they will not be until we have constitutional rights.
    Thank you.
    [The prepared statement of Mr. Twist appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Twist.
    Our final witness is James Orenstein. Mr. Orenstein is a 
former Assistant United States Attorney for the Eastern 
District of New York and served as an Associate Deputy Attorney 
General during the Clinton administration. He is now an 
attorney in private practice and an adjunct professor at 
Fordham University and New York University. While serving at 
the Department of Justice, Mr. Orenstein worked with sponsors 
and supporters of versions of the victims' rights amendment.
    We welcome you to the panel today, sir, and you may 
proceed.

 STATEMENT OF JAMES ORENSTEIN, BAKER AND HOSTETLER, NEW YORK, 
                            NEW YORK

    Mr. Orenstein. Thank you, Mr. Chairman, and Senator Kyl, 
Senator Feinstein. Thank you for allowing me to testify before 
you today.
    As a Federal prosecutor for most of my career, I have been 
privileged to work closely with a number of crime victims, as 
well as talented lawyers on all sides of this issue, to make 
sure that any victims' rights amendment will provide real 
relief for victims of violent crimes without jeopardizing law 
enforcement.
    I think it may be possible to do both, but I also believe 
that there are better solutions that do not carry the severe 
risks to law enforcement inherent in using the Constitution to 
address the problem. In particular, I believe that the current 
bill will in some cases sacrifice the effective prosecution of 
criminals to achieve marginal improvements for their victims.
    In the 20 years since President Reagan received the 
disturbing report of his task force, Congress has enacted a 
variety of statutes that ensure crime victims' rights in the 
criminal justice system. One of those, in my view, effectively 
addressed the problem in the Oklahoma City case, where I was 
one of the prosecutors. No victim was excluded for having 
witnessed prior proceedings as a result of that statute.
    More importantly, for purposes of discussing whether the 
Constitution should be amended, I don't believe that anything 
that happened before or after that amendment, or particularly 
after, would have changed by virtue of this amendment being 
ratified. In one case, the judge decided that the defendant's 
fair trial right would be violated by a witness' testimony. 
That wouldn't change under this amendment.
    In addition to the Federal statutes that Congress has 
passed, every single State has enacted its own victims' rights 
laws. They have not uniformly adopted the full panoply of 
protections that this body provided, so therefore the principal 
benefit to be gained by this amendment is not the elimination 
of the injustices that Ms. Roper and Mr. Twist described, which 
are in any event a violation of law.
    What an amendment would do would be to provide uniformity, 
gained by empowering Congress to override State laws and bring 
local practices into line. That same result, however, could 
likely be achieved through the use of the Federal spending 
power to give States proper incentives to meet uniform national 
standards.
    But unlike reliance on legislation, using the Constitution 
to achieve such uniformity carries the risk of irremediable 
problems for law enforcement. I want to stress that, in my 
view, the potential risks to law enforcement are not the result 
of simply recognizing the legal rights of victims. Prosecution 
efforts are generally more effective if crime victims are 
regularly consulted during the course of the case.
    There are, however, some cases, typically in the organized 
crime and prison settings, where the victim of one crime is 
also the offender in another. In such cases, this amendment 
could harm law enforcement. For example, when a mob soldier 
decides to cooperate with the government, premature disclosure 
of his cooperation can lead to his murder and compromise the 
investigation. Under this amendment, such disclosures could 
easily come from crime victims who are more sympathetic to 
criminals than to the government.
    When John Gotti's underboss, Salvatore Gravano, decided to 
cooperate--and I was one of the prosecutors in that case--he 
initially remained in a detention facility with Mr. Gotti and 
was at grave risk if his cooperation became known. Luckily, 
that did not happen, but the victims who would have been 
covered by this amendment had it been in effect at the time--
relatives of gangsters whom Gravano had murdered on Gotti's 
orders--would almost certainly have notified Gotti if they 
could have done so.
    Now, I have heard supporters of this amendment answer that 
this problem can be solved simply by closing a cooperator's 
guilty plea to the public. However, under the First and Sixth 
Amendments, as well as relevant Federal regulations, it is 
extraordinarily hard to do that. As a result, the need for 
discretion is usually handled by scheduling such guilty pleas 
simply without notice to others and at times when the courtroom 
is likely to be empty. But that kind of pragmatic problem-
solving cannot work under this amendment.
    In the prison context, incarcerated offenders who assault 
one another may have little interest in working with 
prosecutors to promote law enforcement, but they may have a 
very real and very perverse interest in disrupting prison 
administration by insisting on the fullest range of victims' 
services that the courts will make available. Some of these 
services could force prison wardens to choose between cost-and 
labor-intensive measures to afford incarcerated victims their 
participatory rights and foregoing the prosecution of offenses 
committed within prison walls. Either of these choices would 
undermine the safety of prison guards.
    The risk to law enforcement thus arises not from the 
substantive rights accorded to crime victims, but rather from 
using the Constitution to recognize those rights. There are two 
basic ways in which the current bill could undermine the 
prosecution and punishment of offenders.
    First, it may not adequately allow for appropriate 
exceptions to the general rules. Second, its provisions 
regarding the enforcement of victims' rights may harm 
prosecutions by delaying and complicating criminal trials. Both 
types of problems are uniquely troublesome where the source of 
the victims' rights is the Constitution.
    As I have explained in my written testimony, there are 
particularly aspects of the wording of the current proposal 
that could particularly harm law enforcement. One example is 
using the word ``restrictions'' rather than ``exceptions'' in 
Section 2. It might deprive prosecutors and prison officials of 
the flexibility needed for safe and effective enforcement.
    But beyond specific language problems, it is important to 
note that some problems are created by the very fact that the 
current version of the victims' rights amendment discards some 
of the carefully crafted language that was the product of years 
of study and reflection that this Committee approved when it 
favorably reported S.J. Res. 3 in the year 2000. The difference 
between exceptions and restrictions is just one such problem 
and there are others in my written statement.
    Our criminal justice system has done much in recent years 
to improve the way it treats victims of crime and it has much 
yet to do. The Crime Victims Assistance Act, sponsored by 
Senator Leahy and Chairman Feingold and several members of this 
Committee, is a good example of legislation that should be 
enacted, regardless of whether you also amend the Constitution.
    But by adopting the legislative approach now, you may well 
find that the potential harm to law enforcement inherent in a 
constitutional amendment need not be risked. We must never lose 
sight of the fact that the single best way prosecutors and 
police can help crime victims is to ensure the capture, 
conviction, and punishment of criminals. In my opinion, as a 
former prosecutor, the proposed constitutional amendment 
achieves the goal of national uniformity for victims' rights 
only by jeopardizing effective law enforcement. By doing so, it 
ill-serves the crime victims whose rights and needs we all want 
to protect.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Orenstein appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Orenstein, and all the 
witnesses. Now, we will begin five-minute rounds of questions.
    I first would like to underscore a point that was 
illustrated by the testimony that we just heard. There is not a 
single victim's voice on the question of a constitutional 
amendment. Actually, as Ms. Roper noted, in the 20 years since 
the loss of her daughter, great progress has been made in the 
area of victims' rights. It sounds as though the problem that 
Ms. Roper has identified isn't necessarily one needing a 
constitutional fix, but I think it is one requiring legislators 
to continue to write laws addressing the real problems of 
victims.
    I again want to reiterate with all of the witnesses that 
this goal of guaranteeing victims' rights is extremely 
important and is one that we all support. It does lead to my 
first question, though, for Ms. Bird and Ms. Goldscheid.
    Both of you talked about the need for increased resources 
and enforcement of existing victims' rights, not a 
constitutional amendment. Can you provide us with examples of 
legislation that might address the needs of victims better than 
this proposed constitutional amendment?
    Let's begin with Ms. Bird.
    Ms. Bird. Well, in my statement I talked about increased 
funding for services. I think that from my own experience as a 
crime survivor having difficulty navigating the system, what it 
came down to was victims assistance offices actually helping me 
navigate the system, individuals in those offices being willing 
to spend the time with me to be able to kind of help me through 
the system.
    That is not a matter of the laws that were already 
existing. It is a matter of the people that were there, so 
legislation that would increase funding for prosecutors' 
offices, for perhaps agencies that are external from the 
government to be able to work directly with crime survivors.
    Chairman Feingold. Thank you, Ms. Bird.
    Ms. Goldscheid?
    Ms. Goldscheid. I would agree with that suggestion. 
Legislation both at the Federal and at the State level that 
would increase funding for services, both in law enforcement 
offices and with not-for-profits that work with law enforcement 
offices to help victims, goes a long way toward helping enforce 
victims' rights.
    Also, some aspects of the Leahy-Kennedy bill that I think 
was referenced earlier, would be helpful and could promote 
uniformity within the Federal system. There are examples at the 
State level that we could talk about as well. I would be happy 
to work with any members of the Committee on legislation that 
they would be interested in working on.
    Chairman Feingold. Thank you. Again, Ms. Goldscheid, you 
said in your remarks that one of the reason for Safe Horizon's 
opposition to this amendment is because of the effect it will 
have on domestic violence victims. I understand you have dealt 
with thousands of domestic violence victims, mostly women.
    Can you say a bit more about how a constitutional amendment 
aimed at helping the victims of domestic violence could 
actually end up hurting them?
    Ms. Goldscheid. What we have seen in the context of 
domestic violence law reform is that as protections have been 
enacted to help domestic violence victims, in some cases they 
are also used by the offenders. As I mentioned before, for 
example, mandatory arrest laws sometimes have been used to lead 
to dual arrests.
    Batterers sometimes make retaliatory arrests. They make 
complaints through the criminal justice system that can lead to 
battered women, instead of being treated as victims in the 
system, becoming criminal defendants. When battered women are 
treated as criminal defendants, and particularly if they have 
an arrest record, that frequently has very serious 
implications, for example, for child custody, which are very 
difficult to undo. One particular problem with a constitutional 
amendment is that batterers could assert new constitutional 
rights as victims, whih could add to their arsenal of coercive 
tactics and further abuse the true victims.
    One of our concerns is that if we raise victims' rights to 
the level of constitutional protection, the litigation that 
arises from any conflict will be much more complex, and when we 
have battered women who are criminal defendants, the issues 
they face will be even more complicated and hard to untangle, 
particularly if batterers attempt to assert new victims' 
constitutional rights.
    Chairman Feingold. Thank you, Ms. Goldscheid.
    Mr. Orenstein, you did a good job talking about a couple of 
cases and situations that you have been involved in. Senator 
Feinstein discussed a case in Maryland in which the victims 
attempted to reopen the sentencing phase.
    What adverse impact could the amendment have on the 
sentences of criminal defendants and society's desire to 
prosecute and punish criminals? Specifically, could you talk 
about the ramifications of the amendment on sentencing cases 
involving multiple victims and on plea negotiations in complex 
multi-defendant cases?
    Mr. Orenstein. Well, in multiple-victim cases there is 
inevitably a problem for the prosecuting authority of keeping a 
large number of people involved and seeking their views. It is 
just logistically a problem.
    I think in the Oklahoma City case, it was a problem. I am 
sure in the Moussaoui case it is a much bigger problem, but it 
is a problem that prosecutors are eager to address and to find 
ways to work around. But in a case where there are thousands of 
victims, a constitutional amendment that gives the right to be 
heard at sentencing could actually make it virtually impossible 
to get to the end of sentencing.
    Now, I am sure everybody who supports an amendment wants a 
reasonable way of dealing with that situation. I don't doubt 
anybody's bona fides on that, and I know victims groups often 
say we want a voice, not a veto. The problem is this amendment 
doesn't allow exceptions. It allows some restrictions, but that 
is different, and this is why it is so important to try a 
statutory approach rather than a constitutional one.
    It is important to find a way that allows you enough 
flexibility so that in a case like that you can respect the 
victims' rights in a way that makes sense for their interests 
as a group, as well as each individual, and protect law 
enforcement's interest in getting to sentencing and achieving 
the right sentence.
    Chairman Feingold. Thank you for that answer.
    We will turn to Senator Kyl for his questions.
    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Orenstein, you are just plain wrong when you say that 
this amendment doesn't allow exceptions, what you just said. I 
refer you to Section 2, beginning with line 19: ``These rights 
shall not be restricted, except when and to the degree dictated 
by a substantial interest in public safety or the 
administration of criminal justice or by compelling 
necessity.''
    Nobody would allow those kinds of exceptions for the 
protection of defendants' rights, but they are explicitly 
provided for victims' rights because we are well aware of the 
many situations that have been hypothesized as perhaps calling 
for some need for the court to provide an exception with 
multiple defendants, with the battered spouse. All of these 
hypotheticals, as you know because of your previous 
involvement, were vetted through the Department of Justice. As 
a result, we worked with Attorney General Reno to provide these 
explicit exceptions. So you are wrong when you say there are no 
exceptions.
    Now, I have never heard so many fantastic hypotheticals in 
my life, and I think that Steve Twist is right when he says 
that the Bill of Rights would never have been enacted if we had 
considered them with the same degree of concern that has been 
reflected here.
    To the comments of Ms. Bird and Ms. Goldscheid that we need 
better enforcement of existing statutes, I say, yes, we do. But 
I also heard a definition of insanity once, which is that you 
think things will change if you keep on doing the same thing. 
That is why we have said for ten years now they are not 
changing. We have Department of Justice studies that say they 
are not changing, and unless you make a change, you can't 
expect a different result.
    To my good friend, Roger Pilon, three quick comments. 
Rights without remedies are empty promises. You are exactly 
right, and if that doesn't characterize the status quo, I don't 
know what does.
    Secondly, there is a difference between the defendants and 
the victims, and you are absolutely correct in this regard. And 
I think the Chairman and other serious students of the law have 
made this point, but I think it overlooks a couple of things, 
and that is that there is an application of state power or 
coercion involved here not just with respect to the defendants 
but with respect to victims.
    When the judge literally removes you from the courtroom 
because you are a victim, that is the exercise of state power 
no less than it is with respect to a defendant.
    As to the corollary with respect to the difference between 
victims and defendants, namely that there is a consequence of 
state action with respect to the defendants--I mean you might 
even go to jail--I think the failure to appreciate that there 
is also a consequence to the victim is one of the most 
fundamental problems with the debate that we are having. It 
reveals something. It reveals an inability to appreciate that 
there are consequences to victims for their denial of rights in 
our system of justice.
    I don't know what we can do to bring it home to opponents 
that there are these real consequences, except to be personally 
involved and having to suffer through one of these things and 
then you appreciate the consequences. But it is hard unless you 
have been there, I guess.
    So while I appreciate the theoretical points, and I really 
do--you are a serious thinker--I believe that we are failing to 
appreciate something here about the consequences to victims, 
and that is why they say they are victimized a second time. It 
is the state's inability to protect them the first time and the 
actual involvement in the victimization the second time that is 
the thing that we are most concerned about here.
    I got carried away here and I really meant to ask Steve 
Twist to comment on the problem that people perceive about 
these various exceptions and basis for the language that we put 
in the amendment to try to deal with those exceptions, because 
we recognized that we wanted to have flexibility, which is 
another word that one of you was talking about. There is, 
therefore, flexibility here and the ability of courts to deal 
with this.
    Mr. Twist. Mr. Chairman, Senator Kyl, fundamentally I think 
the critics of S.J. Res 35 distrust the courts of our country 
to be able to reach correct decisions when there are issues of 
conflict.
    There is no provision in the Constitution that says when 
the defendant's right to a fair trial comes up against the 
press' right in the First Amendment that the defendant's right 
shall prevail in all cases. But we have a body of law that the 
courts have well developed that set out the parameters for 
fully protecting the defendant's right to a fair trial, and at 
the same time protecting the First Amendment interests to an 
open trial. These are the things that courts do.
    We have allowed explicitly in the language of S.J. Res. 35 
for these exceptions to be recognized when interests of public 
safety, when interests of the administration of criminal 
justice, or other compelling necessity will require exceptions. 
It is explicitly written into the text.
    Fundamentally, I think our critics can take some confidence 
in renewing their trust in the court system because the courts 
will handle these cases very appropriately and very properly.
    Chairman Feingold. Thank you.
    I will move to my second round, and let me first say my 
friend, Jon Kyl, is an enormously respectful and good 
colleague. In fact, he and I were arguably among the only civil 
participants on the Phil Donahue Show last night, which was a 
tough discussion about similar issues. But I am going to take 
somewhat strong exception to his suggestion that people who 
question this constitutional amendment sort of just don't get 
it.
    I voted for a constitutional amendment to the Wisconsin 
State Constitution. I didn't demand at the State level that it 
only be done through statute. I felt that it was appropriate in 
Wisconsin, given the nature of State constitutions, to do it as 
a constitutional amendment. The Federal Constitution and the 
Bill of Rights, though, is a very different thing. So there is 
no disagreement in this room about how terrible the denial of 
the rights of victims is. Everyone agrees on that, and I want 
to reiterate that.
    In fact, Mr. Orenstein, I would like you to have the 
opportunity to respond to Senator Kyl's forceful comments about 
your comments about there not being exceptions, if you would 
like to do that at this time.
    Mr. Orenstein. Let me start by saying I hope I am wrong 
because if this amendment becomes law, we all agree we need the 
flexibility we have been discussing. Here is my point: In the 
previous version that I was involved in working on when I was 
with the Justice Department, the language of S.J. Res. 3 was, 
``Exceptions to the rights established by this Article may be 
created only when necessary to achieve a compelling interest.''
    In the current version, ``exceptions'' has been discarded 
and it says no restrictions may be allowed, except in certain 
situations. So if an individual's right as a victim to speak at 
a sentencing hearing, for example, were curtailed because there 
were so many, such as the case that Senator Feingold was 
talking about before, the victim might say, ``You can't shut me 
out from speaking just because there are so many. That is not a 
restriction on my right; that is a complete exception to the 
right.''
    The argument in support of that position would be whatever 
``restrictions'' may mean in this amendment, the one thing we 
know it doesn't mean, because it was taken out from the earlier 
version, is ``exceptions.'' So there must be some other 
meaning, such as a reasonable limitation on my time or subject 
matter, but not an absolute exception to my right to speak. 
That is what I am concerned about when I say this has 
restrictions, but not exceptions.
    Chairman Feingold. Thank you.
    Mr. Pilon, I am concerned that this amendment does not do 
what the victims' rights amendment I voted for in Wisconsin 
does, as I have talked about, namely protect the rights of the 
accused. The Wisconsin victims' rights amendment states, 
``Nothing in this section or in any statute enacted pursuant to 
this section shall limit any right of the accused which may be 
provided by law.''
    Now, assuming that the proposed constitutional amendment 
before us today is ratified, would you be opposed to including 
language like the language in the Wisconsin victims' rights 
amendment that would protect the constitutional rights of the 
accused? I would also invite you to respond to any other 
comments that have been made, Mr. Pilon.
    Mr. Pilon. Well, thank you, Mr. Chairman. I think you are 
absolutely right to point to the categorical language in the 
Wisconsin amendment, as distinct from the non-categorical 
language in the current version of this amendment.
    I would respectfully respond to Senator Kyl's respectfully-
raised points regarding my testimony, in particular his second 
point about there being a real difference between the rights of 
defendants and the rights of victims, and that nevertheless 
there are real consequences not simply to defendants, but to 
victims of the present system. I couldn't agree more with that.
    In fact, I suppose the most real of those consequences 
arises when the prosecution fails, when the accused, whom the 
victim knows to be the perpetrator of the crime, is able to be 
found not guilty, for whatever reason. Then there is the 
failure of the system in the starkest form. Yet, that is our 
system of justice and I don't think that there is a great deal 
that you can do about that. Those kinds of cases will occur.
    The O.J. Simpson case that I mentioned is one that suggests 
that the prosecution failed, because at the civil level it 
didn't. That is why, again, I pointed to our bifurcated system 
of justice. We have a criminal proceeding, we have a civil 
proceeding, and I think that those who propose this amendment 
are looking too much at the criminal proceeding to do what 
should, in fact, be done in the civil proceeding.
    I would finally conclude to you, Senator Kyl, that as a 
member of the party that stands strongly for federalism and 
federalist principles and for the doctrine of enumerated powers 
and for the principle that there is no general Federal police 
power, it is anomalous, at least, to have an amendment of this 
kind when there is so little Federal criminal jurisdiction. As 
the Chairman said, most of this takes place at the State level 
because that is where most crimes are prosecuted. Therefore, 
there is a real anomaly with having an amendment of this kind 
in the Federal Constitution.
    Chairman Feingold. Thank you, Mr. Pilon. That concludes my 
second round.
    Senator Kyl, do you have additional questions?
    Senator Kyl. Yes.
    Mr. Pilon, would you concede that there is a similar 
anomaly with respect to the protection of the defendant's 
rights by the numerous amendments in the Federal Constitution?
    Mr. Pilon. No, and I will tell you why, because there is 
some Federal criminal jurisdiction attendant to enumerated 
powers. Commerce Clause----
    Senator Kyl. Excuse me, but should it only relate to the 
Federal jurisdiction?
    Mr. Pilon. Therefore, with respect to those cases, even 
before the ratification of the 14th Amendment and the 
incorporation of the Bill of Rights against the States--even 
before that, there were Federal prosecutions, therefore the 
need to ensure that defendants were protected in those areas 
where there was Federal criminal prosecution, limited though 
they be.
    Senator Kyl. How about a corollary right for victims?
    Mr. Pilon. I suppose you could say that with reference to 
those few----
    Senator Kyl. Then we will incorporate it via the 14th 
Amendment, like the Supreme Court has done.
    Mr. Pilon. Well, yes, you could do it, but again this is 
mostly a State matter. Then we come back to the practical 
points, to wit, that there is so much uncertainty as we venture 
out into this area that either you have to write a 
constitutional amendment that is so vague--and that is the 
direction we have been moving in this; if you will look at the 
difference between S.J. Res. 3 and S.J. Res. 6, it is moving to 
greater and greater generality.
    Eventually, you have an amendment that says we stand for 
good things. Of course, that can mean anything one wants it to 
mean, and the greater you move to generality, the more you 
invite the kind of judicial chicanery that I know you and I 
would both like to eschew.
    Senator Kyl. Mr. Twist?
    Mr. Twist. Thank you, Mr. Chairman, Senator Kyl. I have 
been dying to make the same point that in the real world of the 
courts in which I represent crime victims, the difference 
between having Federal constitutional rights and State 
constitutional rights, or State statutes on the other hand, is 
all the difference in the world.
    Even in Arizona, where we have a strong constitution and 
where more often than not it works, the times it doesn't work 
result in great injustice. I have cited cases in my testimony 
and I appreciate it being included in the record. I can offer 
more.
    To Mr. Pilon, who says these rights are not rights against 
a government and therefore are somehow different than the 
rights of defendants, I simply invite him to come to a 
courtroom and see what it is like when a victim is kicked out 
of the courtroom because the judge orders it, or a victim is 
silenced because the power of the state comes down on her and 
says to her, you may not speak, where others may speak.
    I invite him or any of our critics to come to a courtroom 
where the power of the state is felt so palpably on the 
shoulders of victims who do not get to be present, who do not 
get to be heard at critical stages. That is why I am so 
grateful to you, Mr. Chairman, for opening up and renewing the 
opportunity for a dialogue on these issues because it is a 
matter of civil rights and you are a champion for civil rights, 
and these ought to be fundamental birthrights of every 
American, the law of the land. And the only way to make them 
the law of the land is to put them in the Constitution of the 
United States.
    Senator Kyl. Thank you for that.
    Mr. Pilon, you know, because I have slight libertarian 
leanings myself, that the idea of civil remedies is not 
altogether uninteresting to me. But there are some things 
like--and I am talking about consequences to victims now--when 
the victim doesn't receive notice of release or escape from 
jail, when a civil remedy is going to be an after-the-fact 
remedy and probably not very satisfactory if something very bad 
happens. So there are some times when that is not going to be 
satisfactory, it seems to me.
    Might I just ask you, Steve Twist, just to briefly relate 
to the reason--Mr. Orenstein made the fine point about the 
difference between the ``exception'' and ``restriction'' 
language, if I understood it correctly, and I just wondered if 
you could explain the reason for the three different exceptions 
or restrictions that we have provided in here.
    Mr. Twist. Mr. Chairman, Senator Kyl, I think a fair 
reading of the express sentence in Section 2 which you quoted 
is that restrictions may not be allowed, except--emphasis on 
the word ``except''--when three conditions are met: public 
safety interests, administration of criminal justice issues, or 
other compelling necessity.
    Those are intended specifically to allow for flexibility 
both in the statutory implementation and in the later court 
jurisprudence that develops, exactly the kind of flexibility 
that Mr. Orenstein rightfully says is necessary. If that 
sentence were stricken from the amendment, exceptions would 
still be allowed. No right in the Bill of Rights is absolute. 
Mr. Orenstein made the point himself about the First Amendment.
    We know that there is a body of law that will develop that 
will hopefully, to the greatest extent possible, give full 
effect to the rights of defendants and the rights of victims. 
As everyone concedes, the rights that we seek in S.J. Res. 35 
far more often than not in no way intrude on the defendant's 
constitutional rights.
    Chairman Feingold. Thank you. With that, I will bring this 
hearing to a close. I think we would all agree this has been a 
thoughtful and engaging debate on whether protecting the rights 
of victims--a goal that we all share--requires an amendment to 
the Constitution. I think everyone's participation reflected 
the incredibly serious issue of what happens to victims and 
their rights, and also the very serious matter of talking about 
amending the United States Bill of Rights.
    Thank you all for coming. That concludes the hearing.
    [Whereupon, at 12:25 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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